WP(C) No. 21604 of 2020

1 WPC 21604/2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ## **`WP(C) NO. 21604 OF 2020`** ## **`PETITIONER/S:`** ``` SATHEESHKUMAR B., AGED 47 YEARS S/O. BHASKARAN NAIR, SATHINILAYAM (KARA 173), KARIMANKULAM, ARAPPARA, VATTIYOORKKAVU P O, THIRUVANANTHAPURAM - 695013. ``` ``` BY ADVS. IMAM GRIGORIOS KARAT, SRI.B.S.SANKAR LAL SRI.N.KRISHNA PRASAD ``` ## **`RESPONDENT/S:`** - **`1 KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VAIDHYUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM - 695004.`** - **`2 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LIMITED, VAIDHYUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM - 695004.`** ``` BY ADV SRI.M.K.THANKAPPAN, SC, KSEB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2020, THE COURT ON 24.7.2024 DELIVERED THE FOLLOWING: ``` 2 WPC 21604/2020 ## **JUDGMENT** (Dated this the 24[th] day of July 2024) The petitioner entered the service of the 1[st] respondent as Electricity Worker and promoted as Senior Assistant with effect from October 2000. While so, he was promoted provisionally as Senior Superintendent. Though he had given a specific option seeking promotion as Divisional Accounts Officer, it was declined. The post of Senior Assistant is the feeder category for promotion to the post of Senior Superintendent. The Board issued Circular No.EBS1-14/200102 dated 18.10.2003, whereby it was decided to prepare a list of eligible Senior Assistants for promotion to the post of Divisional Accountants Gr.II, now redesignated as Divisional Accounts Officer. The Board, thereafter, issued another order stating that the posts of Divisional Accountants shall be filed up from the list of Senior Assistants after excluding those who are promoted as Senior Superintendents. This was challenged 3 WPC 21604/2020 by few Senior Superintendents before this court and by Ext.P1 judgment dated 4.7.2007, it was held that the promotions provisionally granted as Senior Superintendents could not stand in the way of the petitioners therein being considered for promotion to the category of Divisional Accountants Grade II. Another Senior Superintendent also approached this Court and by Ext.P2 judgment the Writ Petition was allowed. 2. The petitioner completed his probation in the category of Senior Assistant. He was granted higher grade on completion of 10 to 18 years. The promotion of Senior Assistants is to the post of Senior Superintendents as well as Divisional Accounts Officer. When the next promotion post of Senior Superintendent became due, the petitioner gave an option to be promoted as Divisional Accounts Officer. Ext.P3 is the list of Senior Assistants eligible to be promoted as Senior Superintendents. The petitioner is included as serial number 206 in the list. Though he had given an option to be promoted 4 WPC 21604/2020 as Divisional Accounts Officer, the 2[nd] respondent thereafter passed Ext.P4 proceedings dated 5.3.2020, by which the petitioner was promoted as Senior Superintendent provisionally subject to the successful completion of probation in the promoted post. The petitioner, therefore, submitted Ext.P5 representation dated 10.9.2020 to the 2[nd] respondent. The grievance highlighted in Ext.P5 is that he was promoted as Senior Superintendent as per Ext.P4, ignoring his option as Divisional Accountant Officer. The petitioner pointed out that a declaration that he is liable to be promoted as Divisional Accounts Officer from the post of Senior Assistant based on his option exercised by him. 3. A counter affidavit is filed on behalf of respondent Nos.1 and 2 contending that the petitioner was promoted as Senior Superintendent and is working in the Electrical Section Koduvayoor. He has requested for change of cadre from Senior 5 WPC 21604/2020 Superintendent to Divisional Accounts Officer and to the post in the vacancy which arose in the cadre of Divisional Accounts Officer. The promotions in the regular cadre of officers from workmen category are being done strictly on the basis of the departmental promotion committee. A list of Divisional Accounts Officers/Senior Superintendents is prepared according to their seniority and the option exercised in the cadre of Divisional Accounts Officer by satisfying the eligible criteria. As far as Ext.P1 and P2 judgments are concerned, those petitioners were promoted as Senior Superintendents temporarily and as such, their position in the feeder category exists till confirmed in the promoted post. The feeder category of promotion to the cadre of both Senior Superintendents and Divisional Accounts Officer is Senior Assistant. The status of both Divisional Accounts Officer and Senior Superintendents are in the same category with same scale of pay and only the nature of work are different. The candidates for Divisional 6 WPC 21604/2020 Accounts Officer are picked from the combined seniority list prepared from Senior Superintendents and Divisional Accounts Officers. The promotion will be solely based on the option exercised and subject to the availability of vacancy. The sanctioned strength of Divisional Accounts Officer is 31 in the promotion quota and Senior Superintendent is 1147. Hence, the promotion chance of Senior Assistant to Divisional Accounts Officer is less than that of Senior Superintendents. 4. As per the prevailing practice, if there are candidates who have opted to promotion as Divisional Accounts Officer, they will be given promotion when the vacancies of Divisional Accounts Officer occur. If there are no vacancy, they will be promoted to the cadre of Senior Superintendents. The petitioner has not submitted any representation to waive his promotion to the post of Senior Superintendent and to consider promotion to a vacancy which arise to the cadre of Divisional Accounts Officer to the Chairman DPC (Lower) and hence, he was 7 WPC 21604/2020 promoted to the Senior Superintendent and posted at Electrical Section, Koduvayoor. It is also submitted that when the turn of promotion for the petitioner arise, he will be considered. Ext.R1(c) is the order issued by the Kerala State Electricity Board dated 18.6.1994, which does not permit any change in the cadre from Divisional Accounts Officer to that of Senior Superintendent and vice versa. Therefore, prayed for dismissal of Petition. 5. A reply is filed by the petitioner producing Ext Nos.P6 and P7 which are proceedings of the 2[nd] respondent dated 8.9.20202 and 19.2.2021 respectively, whereby few juniors to the petitioner, who were working Senior Superintendents were given promotion as Divisional Accounts Officer overlooking the option of the petitioner. Ext.P9 is also another order dated 3.2.2024 by which another person by name Saju N.K., who was working as Senior Superintendent was promoted to cadre of Divisional Accounts Officer. 8 WPC 21604/2020 6. It is not disputed that the petitioner has opted to be promoted as Divisional Accounts Officer and this is seen from S.No.206 in Ext.P3. But instead of accepting the option, he was promoted as Senior Superintendent by Ext.P4 order. The representation submitted as Ext.P5 was not considered. The counsel for the petitioner relies on Ext.Nos.P1 and P2 judgments and submits that the petitioner is also entitled to the benefit of the judgment, since the petitioners in Ext.P1 and P2 are similarly placed persons like the petitioner, who were promoted as Senior Superintendents and who were not promoted as Divisional Accounts Officer on the ground that once the promotion is effected to the post of Senior Superintendent they cannot be considered to the post of Divisional Accounts Officer as they are not in the feeder category. This contention has been repelled by this court and the petitioners therein were granted reliefs by this court directing the respondents to assign the seniority of the 9 WPC 21604/2020 petitioners in the cadre of Divisional Accounts Officer with effect from the date of promotion his immediate juniors in the cadre of Senior Assistant. 7. The petitioners in Ext.P1 were provisionally promoted to post of Senior Superintendent. Thereafter, when the Board issued another order for promotion to the post Divisional Accounts Officer, those persons who have been promoted as Senior Superintendents were excluded. This court after considering the counter affidavit, filed by the Board and relying on the judgment full bench in **Balakrishnan Nair v. Ram Mohan Nair [1998 (1) KLT 766 (FB)]** and also **Saifuddin v. State of Kerala [2006 (3) KLT 873]** , allowed the Writ Petition and the competent authority of the Bord was directed to consider the claim of the petitioners to the post Divisional Accounts Officer in the light of Rank list. 10 WPC 21604/2020 8. When the petitioner has opted for Divisional Accounts Officer, he should have been given promotion as Divisional Accounts Officer in the first arising vacancy which occurred after Ext.P3. The contention that when the petitioner was promoted as Senior Superintendent, he is no longer in the feeder category, which is Senior Assistant, to the post of Divisional Accounts Officer will no longer hold good, in the light of Ext.P1 and P2 judgments of this court. By Ext.Nos.P6 to P9, persons who were junior to the petitioner in the cadre of Senior Assistants were given promotion to the post of Divisional Accounts Officer ignoring the option given by the petitioner. When the respondents admit in the counter affidavit that cadre promotion is only based on the option and subject to the availability of the vacancy, the petitioner should have been given promotion when his turn arose. Therefore, the petitioner is entitled to succeed in the light of Ext.Nos.P6 to P9. 11 WPC 21604/2020 9. On 20.10.2020, an interim order was passed by this court to the effect that the vacancy which arose due to 30.10.2020, shall not be filled up without further orders from this court. Therefore, this Writ Petition is allowed and the respondents are directed to the post of Divisional Accounts Officer in the vacancy that arose on 30.10.2020. Orders shall be passed in this regard within a period of one month from the date of receipt of a certified copy of this judgment. The Writ Petition is disposed of as above. Sd/- **BASANT BALAJI, JUDGE** dl/ 12 WPC 21604/2020 ## **`APPENDIX OF WP(C) 21604/2020`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P9TRUE COPY OF THE ORDER DATED 3.2.2024 ``` - **`EXHIBIT P2 TRUE COPY OF THE RECENT COMMUNICATION DATED`** - **`10.02.2020 ISSUED BY THE PETITIONER TO THE 2ND AND 3RD RESPONDENT.`** - **`EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE BOARD NO. EBIII(a) SA TO SS/PRO/2019-2020 DATED 04.06.2010.`** - **`EXHIBIT P4 TRUE COPY OF THE ORDER DATED 5.3.2020 ISSUED BY THE SECOND RESPONDENT.`** - **`EXHIBIT P1 TRUE COPY OF THE DETAILS OF MEMORANDUM OF PAYMENT WHICH REPRESENTS THE VALUE FOR THE WORK EXECUTED BY THE PETITIONER.`** - **`EXHIBIT P5 TRUE COPY OF THE LAST REPRESENTATION FILED BEFORE THE SECOND RESPONDENT DATED 10.09.2020.`** ## **`RESPONDENT EXHIBITS`** - **`EXHIBIT R1 TRUE COPY OF THE BO (FB).NO.395/2012(ESST.III/CRRULE/2006) DATED 18/02/2012`** - **`EXHIBIT R1 TRUE COPY OF THE BO (FB).NO.1579/2015(ESST.III/CRRULE/2006) DATED 27/06/2015`** - **`EXHIBIT R1 TRUE COPY OF THE BOARD ORDER NO.1105/94/ESTT.111/1188/91/DATED 18/06/1994.`**